The Fourth Amendment
The Fourth Amendment reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
In plain English the Amendment means: A person, his home, records, and personal effects cannot be searched unreasonably by the Government. To search or seize a person or his property, a warrant is required. This may only be issued if probable cause exists. Probable cause must be supported by someone swearing his statement is true before a Judge. The sworn statement must specifically describe the place to be searched and the person or things to be taken.
The courts have recognized exceptions to the warrant requirements for a legal search under the Fourth Amendment based upon the term “unreasonable”. A search or seizure may take place without a warrant if it is reasonable.
Vehicle Searches and the Fourth Amendment
Police work involves stopping motor vehicles. Stops happen for various reasons: traffic enforcement, investigation of suspect activity and citizen reports. Most stops are without incident. The vehicle is stopped, the driver given a traffic ticket, and the officer and the driver leave. Sometimes the encounter extends beyond the traffic stop.
When the stop goes beyond the issuance of a ticket, a warning or the driver released without consequence, a seizure occurs, often leading to a search. When that happens, the Fourth Amendment is implicated.
The Probable Cause Search
The United States Supreme Court has treated vehicles differently than homes since Carroll v. United States in 1925. The Court noted two differences between cars and homes. First, a vehicle is movable, meaning evidence can be driven away from a scene. Second, a person in a car has less expectation of privacy because a vehicle is subject to things like registration and regulation in ways that a home is not.
Law enforcement has been given leeway to search vehicles if an officer on the scene has probable cause to believe there is criminal evidence concealed in the vehicle.
Courts have approved probable cause searches based upon many factors. An officer seeing something illegal in a car can develop probable cause. For example, if an officer sees a gun on a seat, or a plastic bag with a green leafy substance appearing to be marijuana, then he may conduct a warrantless search. Probable cause exists where the circumstances would cause a reasonable person to believe that criminal evidence might be in the area to be searched.
Probable cause must rise to the level that if the information was presented to a judge a warrant is likely to have been issued. The reasons that a warrantless search may take place are vehicle mobility and a lowered expectation of privacy in a car. The same considerations are involved in a warrantless arrest.
The Consent Search
An officer may have suspicion of something criminal during a traffic stop. He may not be able to articulate that suspicion specifically. Without that there is no probable cause, and the officer cannot legally search the vehicle. He may ask the driver for consent to search the vehicle.
An individual has no obligation to give consent and may refuse consent. The officer may insist on searching. Someone desiring to refuse consent should be polite, but unequivocal. There should be an unmistakable statement. For example: "I am not giving consent to this search".
Firm repetition could be useful in court in the future. Often encounters between police and public are recorded both by audio and video. Clear denial on tape would be strong evidence.
After a driver makes clear the desire that the car not be searched, the officer’s instructions should be followed. Failure to do so could possibly lead to other criminal charges. If, after a clear denial of consent an officer proceeds to conduct a search it is unwise to interfere with the search or touch the officer.
Vehicle Searches without Consent or Probable Cause
Should a vehicle search take place without probable cause or consent, then any evidence gathered cannot be used in court. The way to prevent this evidence from use in court is with a motion to suppress evidence. The proper time for this motion is addressed in The Felony Process.
